Posted on November 15th, 2009 by Derek Bambauer
… according to The Onion. If my calculations are correct, I owe the Evil Empire approximately $9268.65 plus statutory interest. Coincidentally, this is roughly the same amount as an order of nachos and a domestic beer costs at the new Yankee Stadium.
“Interactive media is the next wave,” Cashman said. “With our upcoming mobile phone apps and web integration, we’ll soon be able to charge millions more people for using ‘Yankees suck’ in the privacy of their daily lives.”
In related news, you still cannot trademark “Sex Rod” on “apparel ‘ranging from anoraks to zori.’”
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Filed under: Court Decisions, Internet & Society, Media, Trademarks
Posted on October 26th, 2009 by Derek Bambauer
The net neutrality fight is on, as FCC Chairman Julius Genachowski’s proposal for new rules moved on to a Notice of Proposed Rulemaking. Now, the two sides are digging in: AT&T, telcos, and unions on one side; Google and content providers on the other.
I tend to favor protecting end-to-end in the Internet context, but I’m a bit worried about what the net neutrality rules will look like in practice. There are two ways to think of this problem. First, who is the target of regulatory action? The FCC’s rules seem to look at the CEO or CTO of an ISP or telecom company. I think the correct focus is farther down the corporate ladder: the IT folks who have to implement rules on their routers. The new rules seem fine as policy statements, but how do they translate into what you can and can’t do with bits?
Second, what existing practices are covered by the net neutrality rules? I worry there are some laudable practices that might run afoul of the rules – even if it’s unlikely the FCC would seek enforcement against them. (Safety that depends on agency discretion is not particularly comforting.) Here’s a fast list of practices that might violate net neutrality right now: Read more…
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Filed under: Digital Media, Filtering, ISP, Intermediaries, Internet & Society, Network Neutrality, Privacy, Software, Spam, VoIP, badware
Posted on October 18th, 2009 by Derek Bambauer
Chris Schoenfeld of StationStops has a post up about his battle to get the New York Metropolitan Transit Authority to let him use its schedule data in his iPhone app. Brooklyn’s Law Incubator and Policy Clinic (BLIP) played a big role in Chris’s successful battle, and I’m very proud of the work that the BLIP students and their mentor, Professor Jonathan Askin, did here. It’s a great example of how law students can translate their classroom learning into helping clients in the Web 2.0 world.
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Filed under: Blogging, Copyright, Education & Copyright, Intermediaries, Internet & Society, Law School, Media, Open Access, Peer Production, Software
Posted on October 9th, 2009 by Derek Bambauer
My former ONI colleague Rafal Rohozinski, now of Information Warfare Monitor, has a great interview where he discusses methodology and findings for both projects. Well worth a read!
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Filed under: Berkman, Digital Media, Filtering, Intermediaries, Internet & Society, Media, NSA, Privacy, Security, badware, international, national security
Posted on October 5th, 2009 by Tim Armstrong
Great news today on the open-access (OA) front with the federal government’s announcement that the Federal Register, the daily compilation of proposed and final regulations to be issued by federal agencies, will now be available in XML format. (Want to see a sample? Here is today’s issue as an XML document.) This is great news for a number of reasons, among them:
- It’s canonical, complete, and up-to-date, coming as it does directly from the FR publisher. This solves a number of problems with private actors’ efforts to provide open access to primary legal source materials, as necessary and valuable as those efforts continue to be (particularly for the great bulk of the iceberg “below the waterline”—to wit, the two centuries of government data predating the digital era, published only in paper form). Pagination of the original source is also preserved to aid pinpoint citation.
- It standardizes regulatory OA policy across the entire Executive Branch. No more agency-by-agency variation in the ease of finding proposed regs online. (Memo to the judicial branch: time for the lower federal courts to catch up to what the Supreme Court is already doing in OA archiving!)
More available at my old hometown rag and at BoingBoing.
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Filed under: Intermediaries, Internet & Society, Media, Open Access
Posted on September 22nd, 2009 by Derek Bambauer
My colleague and friend Miriam Baer has posted her latest piece, Governing Corporate Compliance (soon to appear in the Boston College Law Review), on SSRN. Here’s the abstract:
In light of the financial meltdown of 2008, it is reasonable to question whether the prior decade’s emphasis on corporate compliance – the internal programs that corporations adopt in order to educate employees, improve ethical norms, and detect and prevent violations of law – has been fruitful. This Article contends that the key problem with compliance is that we regulate it through an adversarial system that pits federal prosecutors against corporate defense counsel, fueling distrust between corporate entities and the government, and between the corporate employees and the internal monitors tasked with ensuring compliance. Despite this adversarial atmosphere, a number of scholars have suggested that corporate compliance is an example of a more collaborative regulatory approach known as “New Governance.” This Article challenges that notion, arguing that the government’s adversarial stance all but eliminates the experimental and collaborative approach championed by the New Governance movement. The Article further concludes that a New Governance model of compliance regulation is unlikely to take hold. Nevertheless, policymakers should consider New Governance’s administrative stance in lieu of the more punitive, “war-driven” approach that adjudication usually encourages.
We’ve seen a wave of compliance-oriented information law in recent years – perhaps most notably Sarbanes-Oxley – and it’s useful to ponder how worthwhile this approach is likely to prove.
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Filed under: Corporate Law, Intermediaries, Law School, Scholarship
Posted on September 21st, 2009 by Derek Bambauer
My colleague and friend Robin Effron, along with Adam Steinman (a colleague of Tim’s) and Cynthia Fountaine of Texas Wesleyan, has launched the Civil Procedure & Federal Courts Blog. Not only is Robin an expert on civ pro, but she also has the only set of major philosopher action figures I’ve ever seen…
Update: The action figures are available for purchase! (Hat tip: Ted Janger)
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Filed under: Blogging, Cincinnati, Court Decisions, Law School, Scholarship, civil procedure
Posted on September 21st, 2009 by William McGeveran
New FCC Chairman Julius Genachowski threw down the network neutrality gauntlet in a speech today [PDF] [HTML] at the Brookings Institution, announcing his intention to start a formal process that would result in adoption of binding regulations. [There is good news and blog coverage from AP, Wired, and Washington Post.] His proposal would turn the FCC’s existing advisory guidelines, known somewhat ridiculously as the “Four Freedoms” (begging unflattering comparison with a much more significant quartet) into rules governed by six principles. Quick statements of support from two other commissioners, longtime net neutrality supporter Michael Copps and new member Mignon Clyburn, demonstrated that Genachowski has the three out of five votes he needs to prevail.
The two additional principles are extremely important aspects of the plan. First, a “nondiscrimination” principle would embody the heart of the concerns expressed by activists for free speech and end-to-end openness who warned that providers would begin to offer preferential treatment to some content based on the identity of the sender, either to extract fees for high-speed delivery or to block competition. Second, a “transparency” principle addresses the concern I’ve always expressed: consumers and regulators can’t find out about ISPs’ traffic-shaping. As if the formal rule and the new principles weren’t enough, Genachowski also said he would apply the new regime to wireless as well as broadband carriers.
This will be a major fight, probably the most significant battle we have seen within the federal government over the structure of the internet.
A few other observations after the jump: Read more…
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Filed under: Digital Media, ISP, Intermediaries, Internet & Society, Network Neutrality
Posted on September 15th, 2009 by William McGeveran
Reuters reports that he major record labels have sued the producers of The Ellen DeGeneres Show because they do not secure copyright permission to play the songs when Ellen dances around like a goof (and sometimes her guests do too).
I draw three lessons:
1. When someone accuses you of infringement and asks why you did not obtain legally required licenses, do not reply, as Ellen’s producers allegedly did, that you don’t “roll that way.” Otherwise, your adversary will reply:
“As sophisticated consumers of music, Defendants knew full well that, regardless of the way they rolled, under the Copyright Act, and under state law for the pre-1972 recordings, they needed a license to use the sound recordings lawfully”
2. Despite the usual tendency of major TV and film studios to be much more cautious than necessary about IP clearance and licensing, sometimes they screw up too. Even when they are, as the plaintiffs point out, “sophisticated consumers of music.”
3. I always wondered if there were some legal remedy for those dances. Once again, IP comes to the rescue.
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Filed under: Copyright, Intermediaries, Music, RIAA
Posted on September 3rd, 2009 by William McGeveran
From blog post to journal article! I am pleased to report that the new issue of the University of Illinois Law Review includes my article, Disclosure, Endorsement, and Identity in Social Marketing. The ideas for the article began in posts on this blog, starting here and continuing here.
Here’s the full abstract of the new article:
Social marketing is among the newest advertising trends now emerging on the internet. Using online social networks such as Facebook or MySpace, marketers could send personalized promotional messages featuring an ordinary customer to that customer’s friends. Because they reveal a customer’s browsing and buying patterns, and because they feature implied endorsements, the messages raise significant concerns about disclosure of personal matters, information quality, and individuals’ ability to control the commercial exploitation of their identity. Yet social marketing falls through the cracks between several different legal paradigms that might allow its regulation—spanning from privacy to trademark and unfair competition to consumer protection to the appropriation tort and rights of publicity.
This Article examines potential concerns with social marketing and the various legal responses available. It demonstrates that none of the existing legal paradigms, which all evolved in response to particular problems, addresses the unique new challenges posed by social marketing. Even though policymakers ultimately may choose not to regulate social marketing at all, that decision cannot be made intelligently without first contemplating possible problems and solutions. The Article concludes by suggesting a legal response that draws from existing law and requires only small changes. In doing so, it provides an example for adapting existing law to new technology, and it argues that law should play a more active role in establishing best practices for emerging online trends.
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Filed under: Blogging, Digital Media, Intermediaries, Internet & Society, Peer Production, Privacy, Scholarship, Social Networking, Trademarks